' The property in dispute comprising of Square No, 17, Killas Nos. 11 to 12 and 13/1 measuring 12 acres situated in Chat No, 14/G. H., WW1 Kabirwala, District Molten was allotted to respondent No, 2 in the yea 1959 under Grow More Food Scheme. Later on this allotment was cancelled on the 26th of November, 1965 for breach of conditions and was allotted to the petitioner on the 26th of May, 1966 under a permanent scheme relating to the Islamabad Oustees. After this allotment the said respondent executed an agreement in favour of the petitioner acknowledging him to be his landlord and promising to pay the landlord's share of the produce to him. It appears that after the High Court of West Pakistan held that in the circumstances in which the said respondent was placed, the petitioner in the writ petition before the Court was entitled to enquire proprietary rights, the said respondent submitted a petition before the Board of Revenue In its revisional jurisdiction.
Similar petitions were filed by a number of other persons. These 20 petitions, in alt of which the land had been allotted to the Islamabad Goatees came up for hearing before the Member, Board of Revenue on the 10th of February, 1971. AU these petitions were held to be hopelessly barred by time.
It was also held that all the petitioners before the Board of Revenue had violated the conditions of allotment. It was further held that the names of the Islamabad Oustees appeared in the Revenue record and they had been getting Band from the tenants-at-will. These petitions were therefore dismissed on these findings on the 10th of February, 1971 vide Annexure
2. Some of the revision petitioners filed Revision Petition No, 419 of 1971 before the High Court. The High Court allowed the petition and remanded the case to the Collector for fresh decision in accordance with the law. Respondent No, 2, however, appeared to have felt satisfied with the decision of the Board of Revenue and did not challenge the matter by way of writ petition in the High Court.
3. On the 31st of March, 1971 the Board of Revenue issued Memo. No, 263-70/777-C1-III incorporating the decision of the Government "that the area allotted to the Grow More Food Lessees and resumed by the Collector because of their having grown non-food grain crops or failed to bring 50 per cent. Of it under cultivation may be restored to them and proprietary rights given therein provided the lessees are still in physical possession thereof and have brought more than 50 per cent. Of the area under cultivation," The said respondent applied to the Collector on the bads of this Instruction for restoration of the disputed area.
4. The Collector by his order dated 24-1-1974 allowed the, application and allotted the area to the said respondent. The petitioner felt aggrieved against this order and filed an appeal before the Commissioner. The same was allowed on the 9th of October, 1974 and the cue was remanded to the Collector for fresh decision. It appears from the order (Annexure 'B') that the order was based on two grounds. It was pointed out that firstly the petitioner was not given an opportunity of being heard, and secondly the question whether the respondent was his tenant also required to be considered.
5. In post remand proceedings, the Collector dismissed the application of respondent No, 2 on the 30th of December, 1974. An appeal was filed against that order by respondent No, 2 before the Additional Commissioner who dismissed it on the 14th of June, 1975 (Annexure 'C'). He held that the earlier order passed by the Board of Revenue on the 10th of February, 1971 having attained finality, this question could not be revived again. He held that this land was not available for allotment to respondent No,
2. He, however, allowed the prayer of the respondent regarding his eligibility to alternate land and directed the Collector to determine this question.
6. The said respondent filed a revision petition before the Board of Revenue which was allowed by the Member, Board of Revenue in a most perfunctory manner without considering the ground given by the Commissioner. Again without considering whether the possession of a tenant under the petitioner could be said to be "physical possession", within the meaning of the above instruction of 1971, he gave a finding in favour of the said respondent that he was still in possession of the said area and was consequently covered by the said instruction.
7. The learned counsel for the petitioner submitted during his arguments that the order of the Board of Revenue (Annexure 'B') having attained finality and the said respondent having failed to challenge that order before any superior Court, the Member, Board of Revenue was functus officio and could not have acted upon the instruction of 1971 (Annexure RM. He further argued that even this instruction would not have applied since the possession of the respondent over the area in dispute is in the capacity of a tenant and not otherwise. He submitted that the words "physical possession" cannot apply to the possession of the petitioner's tenant. Lastly he submitted that Islamabad Oustees Scheme being a permanent scheme, the respondent could only be given alternate land and not the area in dispute. Mr. Muhammad Ahmed Bani, learned counsel for the respondent on the other hand relied upon the letter (Annexure R/) and submitted that notwithstanding the decision (Annexure 'E') the respondent is entitled to the area in dispute on the basis of this fresh instruction. He denied that there was any relationship of landlord and tenant between the petitioner and respondent No, 2 and argued that being in physical possession he is untitled to the benefit of this instruction.
8. After bearing the arguments of the learned counsel I am of the view that this petition must succeed. The order of the Board of Revenue in Annexure 'B' was not only based on the two grounds given in Annexure 'R/1' (I.e. Cancellation of the allotment of the lessee for growing non-food grain crops or failing to bring 50 per cent. Of it under cultivation), but it was also based on the question that the respondent was no more in possession in his own right and was holding the area in dispute as tenant. Annex= R/1, therefore, would not apply to the case.
9. The instruction in Annexure does not envisage mere physical possession. It provides that the physical possession must be of the lessee., This is clear from the words "provided the lessees are still in physical' possession." Annexure 'R/1' would therefore apply to the case of a lease who has continued in possession over the area under lease in his own rigor despite the resumption of the lease. It cannot apply to a person who as a result of resumption either loses or gives up his possession as a lessee and is in physical possession of the area once under his lease, nor in his own right as a lessee but as a tenant of his successor lessee.
10. Such question was considered in connection with the interpretation of the term 'possession' in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was held that a person holding through another person whether as licensee or tenant cannot be deemed to be in 'possession' within that Act since his possession is not in his own right. Zafar Niazi v.. Qazi Syed Shafaat Ullah and others (1) and Haft Faizul Haque Khan v. Syed Abdul Hamid and another (2). A fortiori this reasoning would apply to a case where it is required that physical possession should be of the lessee as such.
11. If once it is proved or admitted that the said respondent bad acknowledged the petitioner as his landlord and remained in possession thereafter as a tenant, he cannot fulfil the condition laid down in Annexure 'RR' since his possession would not be treated as possession continued in his capacity as lessee but would turn into possessions as a tenant of a lessee. The argument of the learned counsel for the petitioner is, therefore, unexceptionable.
12. Faced with this situation the learned counsel for the respondent contended, as stated before, that the said respondent has never been a tenant of the petitioner though he had signed the agreement acknowledging him to be his landlord and promising to pay the landlord's share of the produce to him. This argument loses all its force In view of this admission. Moreover a finding of fact was given by the Board of Revenue in Annexure 'E' holding that the respondent inter alia had been paying Betel to his landlord (petitioner). I cannot believe the assertion that from the year 1966 the petitioner would have allowed the respondent to remain in possession of the property if he had act. Paid the landlord's share of the produce to him.
13. The learned Member, Board of Revenue has not taken into consideration these points, and he has, thus acted without lawful authority. I therefore. Allow this petition with costs and declare that the order Annexure 'D' has been passed without lawful authority. The result is that the orders of the Collector and the Additional Commissioner would hold the field.
(1) PLD 1965 Kar. 52
(2) 1976 SCM R 429